                  U.S. Supreme Court 

        HURTADO v. PEOPLE OF STATE OF CALIFORNIA,
                  110 U.S. 516 (1884)

                      March 3, 1884

[110 U.S. 516, 517] The constitution of the state of California adopted in 
1879, in article 1, 8, provides as follows: 'Offenses heretofore required to 
be prosecuted by indictment, shall be prosecuted by information, after 
examination and commitment by a magistrate, or by indictment, with or 
without such examination and commitment, as may be prescribed by law. A 
grand jury shall be drawn and summoned at least once a year in each county.' 
Various provisions of the Penal Code regulate proceedings before the 
examining and committing magistrate in cases of persons arrested and brought 
before them upon charges of having committed public offenses. These require, 
among other things, that the testimony of the witnesses shall be reduced to 
writing in the form of depositions; and section 872 declares that if it 
appears from the examination that a public offense has been committed, and 
there is sufficient cause to believe the defendant guilty thereof, the 
magistrate must indorse on the depositions an order, signed by him, to that 
effect, describing the general nature of the offense committed, and ordering 
that the defendant be held to answer thereto. Section 809 of the Penal Code 
is as follows: 'When a defendant has been examined and committed, as 
provided in section 872 of this Code, it shall be the duty of the district 
attorney, within thirty days thereafter, to file in the superior court of 
the county in which the offense is triable, an information charging the 
defendant with such offense. The information shall [110 U.S. 516, 518] be in 
the name of the people of the state of California, and subscribed by the 
district attorney, and shall be in form like an indictment for the same 
offense.'

In pursuance of the foregoing provision of the constitution, and of the 
several sections of the Penal Code of California, the district attorney of 
Sacramento county, on the twentieth day of February, 1882, made and filed an 
information against the plaintiff in error, charging him with the crime of 
murder in the killing of one Jose Antonio Stuardo. Upon this information, 
and without any previous investigation of the cause by any grand jury, the 
plaintiff in error was arraigned on the twenty-second day of March, 1882, 
and pleaded not guilty. A trial of the issue was thereafter had, and on May 
7, 1882, the jury rendered its verdict, in which it found the plaintiff in 
error guilty of murder in the first degree. On the fifth day of June, 1882, 
the superior court of Sacramento county, in which the plaintiff in error had 
been tried, rendered its judgment upon said verdict, that the said Joseph 
Hurtado, plaintiff in error, be punished by the infliction of death, and the 
day of his execution was fixed for the twentieth day of July, 1882. From 
this judgment an appeal was taken, and the supreme court of the State of 
California affirmed the judgment. On the sixth day of July, 1883, the 
superior court of said county of Sacramento ordered that the plaintiff in 
error be in court on the eleventh day of July, 1883, in order that a day for 
the execution of the judgment in said cause should be fixed. In pursuance of 
said order, plaintiff in error, with his counsel, appeared at the bar of the 
court, and thereupon the judge asked him if he had any legal reason to urge 
why said judgment should not be executed, and why an order should not then 
be made fixing the day for the execution of the same. Thereupon the 
plaintiff in error, by his counsel, objected to the execution of said 
judgment, and to any order which the court might make fixing a day for the 
execution of the same, upon the grounds (7) that it appeared upon the face 
of the judgment that the [110 U.S. 516, 519] plaintiff in error had never 
been legally, or otherwise, indicted or presented by any grand jury, and 
that he was proceeded against by information made and filed by the district 
attorney of the county of Sacramento, after examination and commitment by a 
magistrate of the said county; (8) that the said proceedings, as well as the 
laws and constitution of California, attempting to authorize them, and the 
alleged verdict of the jury, and judgment of the said superior court of said 
county of Sacramento, were in conflict with and prohibited by the fifth and 
fourteenth articles of amendment of the constitution of the United States, 
and that they were therefore void; (9) that the said plaintiff in error had 
been held to answer for the said crime of murder by the district attorney of 
the said county of Sacramento, upon an information filed by him, and had 
been tried and illegally found guilty of the said crime, without any 
presentment or indictment of any grand or other jury, and that the judgment 
rendered upon the alleged verdict of the jury in such case was and is void, 
and if executed would deprive the plaintiff in error of his life or liberty 
without due process of law. Thereupon the court overruled the said 
objections, and fixed the thirtieth day of August, 1883, as the time for the 
execution of the sentence. From this latter judgment the plaintiff in error 
appealed to the supreme court of the state. On the eighteenth day of 
September, 1883, the supreme court of the state affirmed the said judgment, 
to review which the present writ of error was allowed and has been 
prosecuted.

A. L. Hart, for plaintiff in error.

John T. Carey, for defendant in error.

MATTHEWS, J.

It is claimed on behalf of the prisoner that the conviction and sentence are 
void, on the ground that they are repugnant to that clause of the fourteenth 
article of amendment to the constitution of the United States, which is in 
these words: [110 U.S. 516, 520] 'Nor shall any state deprive any person of 
life, liberty, or property without due process of law.' The proposition of 
law we are asked to affirm is that an indictment or presentment by a grand 
jury, as known to the common law of England, is essential to that 'due 
process of law,' when applied to prosecutions for felonies, which is secured 
and guarantied by this provision of the constitution of the United States, 
and which accordingly it is forbidden to the states, respectively, to 
dispense with in the administration of criminal law. The question is one of 
grave and serious import, affecting both private and public rights and 
interests of great magnitude, and involves a consideration of what 
additional restrictions upon the legislative policy of the states has been 
imposed by the fourteenth amendment to the constitution of the United 
States. The supreme court of California, in the judgment now under review, 
followed its own previous decision in Kalloch v. Super. Ct. 56 Cal. 229, in 
which the question was deliberately adjudged. Its conclusion was there 
stated as follows: 'This proceeding, as [it] is regulated by the 
constitution and laws of this state, is not opposed to any of the 
definitions given of the phrases 'due process of law' and 'the law of the 
land;' but, on the contrary, it is a proceeding strictly within such 
definitions, as much so in every respect as is a proceeding by indictment. 
It may be questioned whether the proceeding by indictment secures to the 
accused any superior rights and privileges; but certainly a prosecution by 
information takes from him no immunity or protection to which he is entitled 
under the law.' And the opinion cites and relies upon a decision of the 
supreme court of Wisconsin in the case of Rowan v. State, 30 Wis. 129. In 
that case the court, speaking of the fourteenth amendment, says: 'But its 
design was not to confine the states to a particular mode of procedure in 
judicial proceedings, and prohibit them from [110 U.S. 516, 521] prosecuting 
for felonies by information instead of by indictment, if they chose to 
abolish the grand jury system. And the words 'due process of law' in the 
amendment do not mean and have not the effect to limit the powers of state 
governments to prosecutions for crime by indictment; but these words do mean 
law in its regular course of administration, according to prescribed forms, 
and in accordance with the general rules for the protection of individual 
rights. Administration and remedial proceedings must change, from time to 
time, with the advancement of legal science and the progress of society; 
and, if the people of the state find it wise and expedient to abolish the 
grand jury and prosecute all crimes by information, there is nothing in our 
state constitution and nothing in the fourteenth amendment to the 
constitution of the United States which prevents them from doing so.'

On the other hand, it is maintained on behalf of the plaintiff in error that 
the phrase 'due process of law' is equivalent to 'law of the land,' as found 
in the twenty-ninth chapter of Magna Charta; that by immemorial usage it has 
acquired a fixed, definite, and technical meaning; that it refers to and 
includes, not only the general principles of public liberty and private 
right, which lie at the foundation of all free government, but the very 
institutions which, venerable by time and custom, have been tried by 
experience and found fit and necessary for the preservation of those 
principles, and which, having been the birthright and inheritance of every 
English subject, crossed the Atlantic with the colonists and were 
transplanted and established in the fundamental laws of the state; that, 
having been originally introduced into the constitution of the United States 
as a limitation upon the powers of the government, brought into being by 
that instrument, it has now been added as an additional security to the 
individual against oppression by the states themselves; that one of these 
institutions is that of the grand jury, an indictment or presentment by 
which against the accused in cases of alleged felonies is an essential part 
of due process of law, in order that he may not be harassed and destroyed by 
prosecutions founded only upon private malice or popular fury. This view is 
certainly supported by the authority of the [110 U.S. 516, 522] great name 
of Chief Justice SHAW and of the court in which he presided, which, in Jones 
v. Robbins, 8 Gray, 329, decided that the twelfth article of the bill of 
rights of Massachusetts, a transcript of Magna Charta in this respect, made 
an indictment or presentment of a grand jury essential to the validity of a 
conviction in cases of prosecutions for felonies. In delivering the opinion 
of the court in that case, MERRICK, J., alone dissenting, the chief justice 
said: 'The right of individual citizens to be secure from an open and public 
accusation of crime, and from the trouble, ex